Delhi District Court
Sc No. 58906/16 State vs . Rajesh on 2 November, 2017
SC No. 58906/16 State Vs. Rajesh
IN THE COURT OF MS. SEEMA MAINI
ASJ01 / SPECIAL COURT : POCSO ACT ( NORTH ):
ROHINI COURTS : DELHI
In the matter of:
(Sessions Case No. 58906/16)
Unique Identification No. 02404R0106202016
FIR No. 331/14
Police Station Shahbad Dairy
Under Section 363/376/328/392/506
IPC & 4 POCSO Act
State V/s Rajesh
S/o Ganesh
R/o Jhuggi No. 25, Gali no.9, FBlock,
Shahbad Dairy, Delhi.
......Accused
Date of institution 12.02.2016
Date of arguments 02.11.2017
Judgment Pronounced on 02.11.2017
Decision Acquitted
J U D G M E N T
1.The accused Rajesh is facing trial in the present case on allegations of having administered stupefying substance to prosecutrix P (identity withheld), aged about 12 years, kidnapped her and also Judgment : FIR No. 331/14 page 1 of 12 SC No. 58906/16 State Vs. Rajesh committed penetrative sexual assault upon her and also committed theft of her belongings.
2. The facts in brief, which are borne out from the record are that that the investigating agency came into motion on the information recorded as DD no.34B dated 18.03.2014, IO Surender Kumar alongwith Ct. Jaswant went to Jhuggi No.1217, FBlock, Gali no.9, Shahbad Dairy, Delhi, where complainant R (identity withheld) was met and made a complaint that he alongwith his family consisting of three sons and one daughter, is residing at the given address. He complained that on 16.03.2014 his daughter P (identity withheld), aged about 17 years, left the home on the pretext that she is going to her maternal uncle's (Mama) home and thereafter she neither reached at the house of her Mama, nor reached her own house and showed her apprehension that accused Rajesh, who is their neighbour, had enticed and kidnapped her. He wanted legal action in the case.
On the basis of the said complaint, the rukka/ rehrir was prepared by the IO and on the basis of which, present case was got registered and was assigned to SI Sukhpal. Search for the victim girl was made through Zip Net and enquiries were made.
Later on, on 20.03.2014, complainant R produced his missing daughter P in the police station. Victim P narrated that on 17.03.2014 at about 3:00pm while she was going to the market, her neighbour Rajesh met her and put his hand over her shoulder and thereafter she followed him as she was not fully conscious, at that time. Accused Rajesh roamed with her here and there and thereafter took her into a 'Champion' vehicle Judgment : FIR No. 331/14 page 2 of 12 SC No. 58906/16 State Vs. Rajesh near Sector17, Rohini and committed wrong act with her. He again took her here and there and in the night, again took her into the same 'Champion' and again raped her. On the next night i.e. 19.03.2014, again when he was taking her to the same 'Champion', on seeing the police officials he fled away from there, while she came back to her house and narrated the incident to her parents. Prosecutrix P was taken to BSA Hospital for her medical examination, where her MLC No. 35/14 was prepared and sealed exhibits of the prosecutrix were also seized and deposited in the malkhana. Thereafter, further investigation of the matter was assigned to SI Anju Dahiya. Official from NGO was called and the prosecutrix was got counseled. Statement u/s 164 Cr.PC of the prosecutrix was also got recorded, wherein she improved her earlier version and stated that accused put a handkerchief on her face, due to which she became unconscious. She found herself in a vehicle in Sector 17, Rohini. On seeing police officials, accused ran away and she returned home. She further stated that while leaving the house, she was wearing a nose pin and having with her a mobile phone and Rs.1000, which were found missing when she regained her consciousness.
3. During investigation, after issuance of coercive process against the accused, he was declared as PO and thereafter 18.12.2015 accused was arrested in a kalandara u/s 41.1(c) Cr.PC and after issuance of production warrants, the accused was produced in the court of Ld. Predecessor and was arrested in this case. Accused was got medically examined at MV Hospital, vide MLC No. 58/16, and sealed exhibits of the accused were taken into possession and were sent to FSL. Statements of Judgment : FIR No. 331/14 page 3 of 12 SC No. 58906/16 State Vs. Rajesh the witnesses were recorded u/s 161 CrPC. Age proof of victim was obtained and after completion of the investigation, the chargesheet was filed in the Court.
4. On appearance, the accused was supplied with the copy of the chargesheet and other documents. After perusal of the chargesheet, the documents, and hearing Ld. Addl. P.P. for the State and Ld. Counsel for the accused, since primafacie case against the accused was made out, he was charged with the offences punishable u/s 363/328/392 IPC and u/s 4 POCSO (Protection of Children from Sexual Offences) Act, 2012 and in alternative u/s 376 IPC, on 01.03.2016, to which the accused pleaded not guilty and claimed trial.
5. To substantiate its case, the prosecution examined three witness in all, out of which PW3 Dr. Shweta Mittal is formal witness, while PW1 / victim Ms. P and PW2 Sh. RA, being her father, are the material witnesses.
Formal Witness
6. Dr. Shweta Mittal, SR Gynae, Dr. BSA Hospital was examined as PW3. She deposed that she was deputed by the MS of the hospital to appear and depose in this case, on behalf of Dr. Deepika Gupta, who has since left the services of the hospital. She further deposed that she had seen Dr. Deepika Gupta writing and signing, during the course of her duties and she can identify her handwriting and signature.
Judgment : FIR No. 331/14 page 4 of 12
SC No. 58906/16 State Vs. Rajesh
She further deposed that on 20.03.2014, patient P, aged about 17 years, female was produced in the hospital for her medical examination by WCt. Sangeeta. Dr. Deepika Gupta examined the said patient vide MLC No.35/14 Ex.PW3/A, as per which the father of the patient agreed for the internal medical examination of the patient P and his consent was recorded at pointX and accordingly after internal medical examination of the patient her exhibits /samples, as detailed on the back side of the MLC, were collected, sealed with the seal of hospital and the list was countersigned by Dr. Deepika Gupta and the samples were handed over to the concerned police official.
Material Witnesses
7. Prosecutrix/Victim P, aged about 21 years, has entered the witness box as PW1. After conducting preliminary examination of the victim by putting certain questions to her to assess the competency of victim to give rational answers, on being satisfied, the statement of the victim was recorded, wherein PW1/victim P correctly identified the accused, present in the court, and deposed that on 16.03.2014 she voluntarily left her home and went to the house of her maternal uncle (Mama) and stayed there in the night and on the next day, she came back to her house. She further deposed that accused never enticed her nor kidnapped her and never committed any wrong act with her.
Since the witness/PW 1 had resiled from her earlier statement, on the request of the Ld. Addl. P.P. for the State, he was allowed to cross examine the witness. In her crossexamination by the Ld. Addl. P.P. for Judgment : FIR No. 331/14 page 5 of 12 SC No. 58906/16 State Vs. Rajesh the State, PW1 admitted that when she came back to her house, she was produced before the police and police got recorded her statement before a Ld. Judge. She also admitted that she was got medically examined and her statement Ex.PW1/A was also recorded by the police on 22.03.2014, therein she also identified her thumb impression and signatures. However, she qualified that she gave the said statement under pressure from her parents and relatives. She denied that in the afternoon of 17.03.2014, accused met her and put his hand on her shoulder and soon after she went alongwith him. She also denied that she was semi conscious and accused kept her with him and thereafter took her in a Champion vehicle, which was parked at Sector17 and on the back side of the said vehicle, he forcibly raped her or that he committed rape upon her on the next day as well. She also denied the on 19.03.2014 when the accused was taking her with him, police officials came there and on seeing them, accused ran away from there or that she asked the way to her house from the police officials and thereafter, she reached home. She identified her signature on the statement u/s 164 Cr.PC Ex.PW1/B. However, she volunteered that said statement was given under pressure of her relatives and residents of locality. She denied that while leaving home, she was having a mobile phone, Rs.1000 and one gold nose pin, which were removed by the accused. She also denied that she came to know that accused had earlier committed sexual assault on a five years old boy or that he was released from the Jail after four years. She admitted that in the year 2014, she was 17 years old. She denied that she narrated the true incident to the doctor at the time of her medical examination. she further clarified that her parents were talking to the Judgment : FIR No. 331/14 page 6 of 12 SC No. 58906/16 State Vs. Rajesh doctor and she do not know what was mentioned on her MLC. She denied her clothes having been seized or giving her statement MarkP1 to the police. She denied the suggestion that she had compromised with the accused and in order to save him, she was deposing falsely in the court. She stated that she cannot identify her clothes, which she was wearing at the time of alleged incident.
8. Prosecution further examined Sh. R.A. (identity withheld) father of the victim as PW2, who deposed that on 16.03.2017, his daughter P, went from house at about 2:00pm for the house of his brotherinlaw but she did not reach there and thereafter, he came to know that accused Rajesh, whom he correctly identified in the court, was also missing from his house, upon which he suspected the role of accused in kidnapping and enticing his daughter and as such he lodged a complaint Ex.PW2/A in this regard with PS S. B. Dairy.
Since the witness/PW 2 had resiled from his earlier statement, on the request of the Ld. Addl. P.P. for the State, he was allowed to cross examine the witness. In his crossexamination by the Ld. Addl. P.P. for the State, PW 2 denied that on 19.03.2014 when his daughter came back to house, she told him that their neighbour Rajesh had enticed and kidnapped her and also committed rape upon her. He also denied that thereafter, he produced his daughter in the police station or that her statement was recorded by the police in his presence. He denied having made statements Mark P2/A and B to the police. He denied having compromised with the accused and to save him in this case intentionally Judgment : FIR No. 331/14 page 7 of 12 SC No. 58906/16 State Vs. Rajesh not supporting the case of the prosecution or that deposing falsely.
During crossexamination by Ld. Defence counsel, PW2 admitted that after coming back, her daughter informed him that she had voluntarily went to the house of his brotherinlaw and thereafter, she came back of her own.
9. The victim as well as her father, who were cited as the material witnesses of the occurrence, by the prosecution, did not support the prosecution case and resiled from their previous alleged statements and complaint. Even on being crossexamined by the Ld. Addl. P.P. for the State, their stand remained consistent that the accused had neither enticed or kidnapped victim P after administering stupefying substance to her, nor committed sexual assault upon the victim P, nor committed theft of belongings of victim P. Ld. Addl. PP for the State stated that there is no other incriminating evidence, which would connect the accused with the offences he has been charged with and therefore recording of further prosecution evidence was not necessitated and accordingly PE was closed.
10. Since there was no incriminating evidence against the accused, the recording of statement of accused u/s 313 CrPC was dispensed with.
11. I have heard Sh. Sanjay Jindal, Ld. Addl. PP for the State and Sh. Vinkle Goyal, Ld. counsel for the accused, scrutinized the evidence adduced by the prosecution and have gone through the record.
Judgment : FIR No. 331/14 page 8 of 12
SC No. 58906/16 State Vs. Rajesh
12. Age of the Victim: In order to ascertain the age of the victim S, the prosecution collected and relied upon the Certificate dated 18.03.2015 issued by the Principal, Primary School, Gaddipur, Mehnagar, Ajamgarh, where the victim P was studying, which reveals that the date of birth of victim P is 04.05.1996. The photocopy of the relevant entry of the concerned Register maintained in the said School, has also been placed on record, which shows the date of birth of victim P as 04.05.1996. Defence has not disputed the age of the victim in any manner. As such, on the date of alleged incident i.e. 16.03.2014, the victim was aged about 17 years, and hence she is a "Child" within the meaning given under the POCSO Act.
13. Medical and forensic Evidence : PW1/victim got her internal medical examination conducted. FSL result has also been put forth by the prosecution, which is supportive for the prosecution in as much as , it mentions as follows :
"Conclusion : The DNA profile (STR analysis)) performed on the source of exhibits 'Ih', 'Ii1', 'Ii2', 'Ii3', 'Ik' & '2' were sufficient to conclude that the DNA profile generated from the source of exhibit 'Ih' (i.e. Cervical Mucus Collection), exhibit 'Ii1', 'Ii2', 'Ii3' (i.e. Vaginal Secretion) & 'Ik' (washing from vagina) are similar with the DNA profile generated from the source of exhibit '2' (i.e. Blood sample of accused.
14. Testimony of victim and her father: The victim P as PW 1, denied the prosecution case in its entirety, deposing that on 16.03.2014, she voluntarily left her home and went to the house of her maternal uncle (Mama) and stayed there in the night and on the next day, she came Judgment : FIR No. 331/14 page 9 of 12 SC No. 58906/16 State Vs. Rajesh back to her house. She further deposed that accused never enticed her nor kidnapped her and never committed any wrong act with her. During crossexamination by Ld. Addl. PP for the State, though she admitted her signature/thumb impression on statement Ex.PW1/A recorded by the police and statement Ex.PW1/B but later on qualified that she gave said statements under pressure from her parents and relatives. She denied that in the afternoon of 17.03.2014, accused met her and put his hand on her shoulder and soon after she went alongwith him. She also denied that she was semiconscious and accused kept her with him and thereafter took her in a Champion vehicle, which was parked at Sector17 and on the back side of the said vehicle, he forcibly raped her or that he committed rape upon her on the next day as well. She also denied the on 19.03.2014 when the accused was taking her with him, police officials came there and on seeing them, accused ran away from there or that she asked the way to her house from the police officials and thereafter, she reached home. She denied that while leaving home, she was having a mobile phone, Rs.1000 and one gold nose pin, which were removed by the accused. She denied of giving statement MarkP1 to the police. She specifically denied the suggestion that she had compromised with the accused and in order to save him, she was deposing falsely.
15. Similar was the case with the testimony of PW 2, father of the victim P. He did not support the prosecution case and deposed that on 16.03.2017, her daughter P, went from house at about 2:00pm for the house of his brotherinlaw but she did not reach there and thereafter, he came to know that accused Rajesh, to whom he correctly identified in the Judgment : FIR No. 331/14 page 10 of 12 SC No. 58906/16 State Vs. Rajesh court, was also missing from his house, upon which he suspected the role of accused in kidnapping and enticing his daughter and as such he lodged a complaint Ex.PW2/A in this regard with PS S. B. Dairy. He specifically denied the suggestions put by the Ld. Addl. P.P. for the State, that on 19.03.2014 when his daughter came back to house, she told him that their neighbour Rajesh had enticed and kidnapped her and also committed rape upon her. He also denied that thereafter, he produced his daughter in the police station or that her statement was recorded by the police in his presence. He denied having made statements Mark P2/A and B to the police.
During crossexamination by Ld. Defence counsel, PW2 admitted that after coming back, her daughter informed him that she had voluntarily went to the house of his brotherinlaw and thereafter, she came back of her own.
16. As such, the victim herself as well as her father, who were the only material witnesses, on whose testimony, the case of the prosecution was hinging, did not support the prosecution case. The two star witnesses, examined by the prosecution, on which the case of the prosecution was based, have denied the happening of the alleged incident, in totality.
No doubt, the FSL result was a positive one, in favour of the prosecution. However, the FSL result is also a corroborative piece of evidence, which in isolation is not sufficient for bringing home the guilt of the accused. The victim was the star witness of the prosecution, who has denied any forcible penetrative sexual assault having been made upon Judgment : FIR No. 331/14 page 11 of 12 SC No. 58906/16 State Vs. Rajesh her by the accused. Prosecutrix and her father were the material witnesses of the incident and they not having supported the prosecution case and having given a clean chit to the accused, there is nothing that survives in the prosecution case, which falls flat on its face, failing to bring home the guilt of accused.
17. Conclusion : From the aforesaid discussions, allegations against accused are not proved. Accordingly, accused Rajesh stands acquitted for the offences, he has been charged with. Bail bond of the accused stands cancelled and his surety is discharged. Documents of the surety, if any retained on record, be released to him on appropriate application being moved by him.
Accused is directed to furnish a personal bond in the sum of Rs.10000/ under provisions of Section 437A CrPC, with one surety in the like amount.
Since victim has not suffered any injury or loss, either physical, mental or psychological, he has not been granted any compensation as per provisions of section 33 (8) POCSO Act.
File be consigned to record room.
Announced in the open court today i.e. on 02.11.2017 (SEEMA MAINI) ASJ01/Special Court : POCSO Act :
North : Rohini/Delhi : 02.11.2017 Judgment : FIR No. 331/14 page 12 of 12